Tuesday, March 31, 2015

How Oklahoma Cops Detect and Detain Suspected Drunk Drivers: Part Two

In our first post of this DUI Detection series, which covers the “DWI Detection and Standardized Field Sobriety Testing” guidelines for police officers, we covered the first phase (“vehicle in motion”) of the three-phase process that police use when making the determination of whether to stop a driver on suspicion of driving while intoxicated. This post continues addresses the second phase, “personal contact.”

 We should note at the outset that the three-phase sequence -- vehicle in motion, personal contact and pre-arrest screening -- do not need to be followed in order. It is possible for a police officer to skip the first phase and go directly to the second; a common way this can happen is at a DUI checkpoint, or when the officer is responding to the scene of a car accident.

 The purpose of the personal contact phase is for the officer to observe the driver while still in the car and to assess whether signs exist that suggest that the driver may be impaired. Depending on how this face-to-face interaction progresses, the officer will eventually decide whether the driver is sober, whether to go to the third phase and ask the driver to exit the vehicle so that field sobriety tests can be administered, or to arrest the driver based on probable cause of DUI.

 When the officer begins the personal contact with the driver, he or she will be relying on sensory cues to assess the driver’s state of sobriety. These cues include:
       Visual: The officer will be looking for intoxication-related symptoms such as bloodshot eyes, alcohol containers in the car, drugs or drug paraphernalia, unusual actions, soiled clothing, or shaky hands and fingers.
       Audible: The officer will be listening for the driver’s admission that he or she has been drinking, slurred speech, inconsistent answers to questions, abusive language or unusual statements.
       Smell: The officer will note whether the odor of alcohol or marijuana is present, or if the driver has been using something like candies or breath sprays as an attempt to cover up such odors, as well as noticing whether other unusual odors are present in the vehicle.
Police officers are trained in interview techniques that impaired drivers will have difficulty with, most notably questions that require the driver to satisfactorily demonstrate divided attention tasks. For example, the officer may ask for the driver to do or produce two things at the same time, or may interrupt the driver’s answer with another question (suddenly asking for the time or the date, or what the driver’s middle name is), or using other techniques such as having the driver recite the alphabet or do a verbal countdown.  

During this questioning, the officer will be looking for tip-off behaviors. For example, when asked for a driver’s license and registration, does the driver forget to provide both, or provide a document other than one requested? Does the driver seem to be fumbling for the documents?  This is a divided attention test whereby the officer is intentionally asking you to do several things at one time to see if you are able to comply. 

If the questioning leads the officer to suspect intoxication, then he or she will usually instruct the driver to exit the vehicle. Even then the officer will be observing for symptoms, such as the driver’s inability to follow instructions, inability to open the door, leaning against the vehicle or having to use the hands to steady his or herself. 

In our next post in this series, we will go over what the officer may do in the third phase, the pre-arrest screening once the driver has exited the vehicle. 

The Oklahoma DUI Lawyers as well as most of our support staff at the Hunsucker Legal Group are trained and certified in NHTSA DWI Detection and Field Sobriety Testing.  Our goal is that we will be better trained and have more knowledge that the prosecutor and the police officer when we step into a courtroom to protect our clients.  For a free consultation, please call 405-231-5600 or visit www.okdui.com
John Hunsucker

What does it really mean to be a convicted felon?

In Oklahoma, the trend has been to make more and more petty crimes into felony charges.  A second time marijuana conviction in Oklahoma is a felony.  Previously, a previous conviction for DUI could result in felony DUI arrest.  Now, a previous deferred that has been expunged can be used to make a new DUI charge received 19 years after the first one a felony.  The list goes on and on.  the result is we are making our state a state of felons.  Here are the consequences of being a convicted felon:


John Hunsucker
Oklahoma DUI Lawyer

Tuesday, March 24, 2015

New articles dealing with breath testing and overcriminalization.

Just posted several new blog articles dealing with a couple different issues.
 Recently, the Unites States Supreme Court (SCOTUS) recognized the term overciminalization in their opinion Yates v. United States.  Basically, SCOTUS looked at the issue of prosecutors over reaching and attempting to stretch legal definitions to increase the potential punishment.  Here is link to the blog article: http://oklahoma-criminal-defense-lawyer.com/u-s-supreme-court-ready-recognize-idea-overcriminalization/

The other article was posted on a national DUI blog that I also am a contributor.  It was posted there as it is applicable to breath tests all over the nation.  The article explains the issues with breathalyzers and Intoxilyzers.  The article is posted here: http://duinewsblog.org/2015/03/24/factors-affecting-oklahoma-intoxilyzer-breathalyzer-tests/

Tuesday, March 17, 2015

Oklahoma Expired Blood Test Kits: Is It Really Acceptable To Keep Using Them?

One of the tools that Oklahoma law enforcement use to gather evidence of driving under the influence (DUI) is a blood collection sample kit. This kit contains vacuum-sealed tubes, which are designed to draw in a pre-determined amount of blood which then mixes with an inorganic salt compound consisting of sodium fluoride and potassium oxalate.


Oklahoma blood test kits carry expiration dates on the vacuum-sealed tubes. There may be some confusion as to the effect these expiration dates may have if a police officer uses a tube that is beyond its expiration.


The first question is whether the expiration relates to the salt compound contained in the tube. The answer here is, “no.” The compound itself is stable. This leads to the second, and more significant inquiry: if the expiration date on the blood collection vacuum tube does not refer to the salt compound, then what does it refer to?


The expiration refers to the tube manufacturer’s warranty that the vacuum seal of the tube will maintain its integrity to a degree sufficient to draw a pre-determined amount of blood. It is the vacuum that draws the blood into the tube; but unlike the salt compound, the tube seal eventually does degrade and as it does, the amount of blood that it will draw into the tube becomes increasingly subject to uncontrolled variation.


So what does this mean to you, if you are subject to a blood draw using an expired vacuum tube?


The most significant impact of a loss of vacuum is that the amount of blood drawn into the tube may affect the ratio between the blood and the salt compound, which in turn may compromise the value of the test result when it comes to establishing whether a driver was under the influence when the blood sample was drawn. This potential volume-based skewing of the test sample is referred to as, “salting out”.


A second possible problem with a loss of vacuum integrity in the collection tube is that a compromised seal means that more than the blood sample may possibly be able to enter it. Certain commonly-found yeast bacteria, for example, may be able to enter via the degraded seal. That bacteria consumes the blood sugar, or glucose, and as a waste product produces… alcohol. That is correct: a contaminated sample due to a faulty vacuum seal can result in the production of alcohol inside the tube.


What is more, there is no way for the devices used to analyze the blood sample for alcohol content to distinguish between the alcohol that was in your blood when the sample was drawn and any bacterially-produced alcohol that was created after the draw. This can lead to a challenge of the evidentiary value of the sample itself.


Are expired blood test kits being used in Oklahoma? The answer appears to be, “Yes.” Documentation available from the state’s Board of Tests for Alcohol and Blood Influence indicates that not only are some expired test kits still in the field, but that the State Director of the Board of Tests has given the green light to keep using them.


Not every blood draw sample in Oklahoma will be subject to vacuum-seal compromise. And the state is encouraging law enforcement in the state to turn in expired test kits. But if you have been accused of DUI based in part on the result of a blood sample, the fact that some of these expired kits are apparently still in use is an avenue that your attorney will definitely need to investigate as part of your defense.

The Oklahoma DUI attorneys at the Hunsucker Legal Group have received advanced training in the science and laws relating to blood and breath testing.  Call them today for your free consultation at 405-231-5600

Thursday, March 12, 2015

How Oklahoma Police Officers Detect and Detain Suspected Drunk Drivers: Part One

When it comes to making DUI stops, it is well-established in Oklahoma and other states that police officers cannot arbitrarily stop vehicles and then “work backwards” to try to find something illegal. The stop itself must have some basis in reasonable suspicion that the driver is driving while under the influence. But how do police make such a determination? Is there any uniform standard that they adhere to, and if so what is that standard?
Police in many jurisdictions do in fact have guidelines to help them decide whether to pull over a vehicle the driver of which they suspect is intoxicated. One such set of guidelines is issued by the US Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), and is entitled “DWI Detection and Standardized Field Sobriety Testing.”  It is important to realize that this manual is more than just how to perform the roadside field sobriety tests but also trains an officer when he should stop a vehicle suspected of DUI or DWI. 

The NHTSA standards visualize a police DUI stop as a three-phase process that begins with observing the vehicle in motion, then progresses through making personal contact with the driver and finally to pre-arrest screening. This post will address the first of these three phases, “vehicle in motion.” 

This first phase is intended to answer the question, “Should I stop the vehicle?” Depending on the circumstances, the officer will answer the question in one of three ways:
       Stop the vehicle right away
       Wait and look for additional evidence
       Do not stop the vehicle
Driving a car involves a process known as “divided attention.” A sober driver must be able to handle multiple tasks simultaneously, or near-simultaneously, such as steering, signaling, controlling the accelerator and brakes, and observing other cars and traffic signals. 

Impaired drivers have trouble dividing their attention; they tend to concentrate on only a few critical tasks at any given time, letting the other tasks slip. These drivers frequently demonstrate symptoms that police are trained to look for, such as slowed reactions, poor coordination, impaired vision or impaired judgment.  

There are, in fact, more than 100 driving cues that may indicate DUI behaviors, which fall into broader categories:
       Problems maintaining proper lane position
       Speed and braking problems
       Vigilance problems
       Judgment problems 
Thus, police officers in phase one will be observing the vehicle to see if the driver exhibits behaviors like committing a moving traffic violation, swerving or weaving in a lane or across lanes, turning with an unusually wide radius, or driving at an unusually slow speed or with varying speeds.  

The NHTSA standards even suggest the possible level of alcohol intoxication that these behaviors may indicate:
       Slowed reactions: blood alcohol concentration (BAC) of 0.03
       Impaired judgment: BAC of 0.05
       Impaired vision: BAC of 0.08
       Poor coordination: BAC of 0.10
Other things that police will look for include expired registration tags or movement in the car indicating that the driver is drinking something or otherwise taking drugs. 

The officer’s decision whether to move to the second phase -- stopping the vehicle and interacting with the driver -- can depend on the severity of the impairment symptoms that he or she sees. Dangerous behaviors, such as nearly striking other vehicles or objects or driving with one’s headlights off at night will likely result in an immediate stop; less severe behaviors, like driving slowly or drifting within a lane may lead the officer to wait and see if the driver displays other symptoms. 

In a following post, we will consider phase two of the three-phase process: the vehicle stop and the officer’s communication with the driver. 

Every one of our Oklahoma DUI Lawyers as well as most of our support staff at the Hunsucker Legal Group are trained and certified in NHTSA DWI Detection and Field Sobriety Testing.  It is our goal that we will be better trained and have more knowledge that the prosecutor and the police officer when we step into a courtroom to protect our clients.  For a frre consultation, please call 405-231-5600.

Monday, March 2, 2015

Field Sobriety Tests: How Reliable Are They?

Aside from Intoxilyzer or blood tests, one of the commonly-used means of Oklahoma police to assess whether an Oklahoma driver is under the influence of drugs or alcohol are field sobriety tests. Officers typically have a suspected drunk driver perform a battery of sobriety tests; failing one or more of them can not only lead to an arrest for DUI, it can possibly also be used by the prosecution as evidence at trial.


Field sobriety tests are not, however, foolproof as indicators of intoxication. To begin with, they are limited in their evidentiary value. None of these tests can be used as a correlation to a specific blood alcohol content level, because they may only indicate intoxication (and not necessarily alcohol intoxication). Moreover, even a test that may seem to suggest intoxication might not hold up in court if reasonable doubt can be cast on the way that police officer conducted it.


Precision is key. Just as an Intoxilyzer must be properly calibrated for its results to hold up in court, field sobriety tests must be administered correctly to be valid. Even seemingly minor mistakes by the officer during the testing can open the door to challenging the test results, and a successful challenge can make the difference between a conviction for DUI or an acquittal.


The National Highway Transportation Safety Administration (NHTSA) establishes the requirements to properly administer field sobriety tests. These guidelines are quite precise; the inadvertent failure of a police officer to follow them properly is a definite possibility.


As one example, consider the “horizontal gaze nystagmus” test. This test involves instructing the test subject and then having the test subject follow the track of a stimulus object, such as a flashlight, with his or her eyes while holding still. In theory the test sounds simple to administer, but there are several ways that the police officer can commit errors that invalidate it.


The test itself consists of four phases and 14 passes of the stimulus object. The NHTSA requirements are specific on how the test subject is to be positioned, how far from his or her nose the stimulus object should be held, how quickly it should be moved, the maximum angle of deviation that should be used, and the minimum time that should be spent conducting the test; if it takes less than 86 seconds then it is suspect because the officer has performed it too quickly, which in turn shows that one or more of the steps was administered correctly.


For anyone accused of DUI in Oklahoma based at least in part on the results of field sobriety tests, what is important to know is that not only is it imperative that the police officer who administered the test followed the correct procedure with exactitude, it is also essential that the Oklahoma DUI defense attorney also be intimately familiar with the details of the test protocols. Only an experienced DUI attorney who has carefully studied the NHTSA requirements for how a valid test should be given will know what to look for when it comes to identifying ways in which the officer may have made a mistake.  The DUI Attorneys at the Hunsucker Legal Group have received the same field sobriety testing training as the police officer on the street and are versed in defending Oklahoma drivers accused of DUI or APC.  Most often, they know the Field Sobriety Manual better than the arresting officer. 

 John Hunsucker


Sunday, March 1, 2015

Good Article About Cost of Reinstating Oklahoma Driver's License

Nice quote from me in today's Daily Oklahoman.  Oklahoma Watch is doing a series about the high cost offenders face when getting out of prison and the author called me to discuss the cost of license reinstatement.  You can't access it online through the Daily Oklahoman's website but the same story is on Oklahoma Watch's website.  http://oklahomawatch.org/2015/02/23/for-released-offenders-a-steep-price-to-drive-again/

John Hunsucker
Oklahoma DUI Lawyer